Mt Arthur Coal Pty Limited T/A Bhp Mt Arthur Coal

[2024] FWC 2616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.318 - Application for an order relating to instruments covering new employer and transferring employees

Mt Arthur Coal Pty Limited T/A Bhp Mt Arthur Coal

(AG2024/3637)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 23 SEPTEMBER 2024

Application for orders under s 318 of the Fair Work Act 2009 (Cth)

The Mt Arthur coal mine (Mine) is owned and operated by the BHP Group. The Mine is located in the Hunter Valley, New South Wales.

Mt Arthur Coal Pty Limited (Mt Arthur) is an entity within the BHP Group which employs employees to work at the Mine.

Mt Arthur seeks orders under s 318(1) of the Fair Work Act 2009 (Cth) (Act) in relation to the transfer of employees who are, or were previously, employed by BHP WAIO Pty Ltd (ABN 18 008 852 784) formerly BHP Billiton WAIO Pty Ltd (WAIO) to become employed by Mt Arthur at the Mine. These employees are, or were, employed by WAIO at an iron ore mine located in Newman, Western Australia.

The orders sought by Mt Arthur relate to Ms Katrina Booth and other unnamed employees who may in the future be in a similar situation to Ms Booth. Ms Booth currently works as a Production Technician (Dump Truck Operator) at WAIO’s iron ore mine in Newman, Western Australia. Ms Booth has agreed to move to the Hunter Valley to take up employment with Mt Arthur in the role of Production Operator at the Mine.

On the filing of Mt Arthur’s application for orders pursuant to s 318 of the Act, I gave Ms Booth an opportunity to be heard in relation to the application. Ms Booth informed the Commission that she had “nothing to add” in relation to this matter.

I am not prepared to make the orders sought by Mt Arthur. I can only make such orders if, among other things, I am satisfied that there is a transfer of business within the meaning of s 311 of the Act. A transfer of business cannot occur within the meaning of s 311 unless the work the transferring employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer (s 311(1)(c)). In the present case, the work Ms Booth will do for Mt Arthur is not the same, or substantially the same, as the work she does for WAIO, particularly having regard to the location of the two workplaces and the fact that two different types of mineral assets are involved (black coal rather than iron ore), involving distinct mining processes (Crown Sydney Gaming Pty Limited v United Workers' Union [2022] FCA 97 at [14]).

As to other employees who may move to the Mine in the future, I would need to understand all the relevant facts and circumstances associated with such a move before deciding any application under s 318 of the Act in relation to such employees.

For the reasons given, the application for orders under s 318 of the Act is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Federal Circuit and Family Court of Australia considered an application made by Mt Arthur Coal Pty Limited, trading as Bhp Mt Arthur Coal, for orders under section 318 of the Fair Work Act 2009. The application arose out of a workplace dispute involving the dismissal of employees and the subsequent industrial action taken by those employees.

The primary legal issue before the court was whether the dismissal of the employees was unlawful and whether the industrial action was protected under the Act. The court was required to determine whether the dismissals were for reasons that were anti-union, in bad faith, or related to the employees' union activities, and whether the industrial action was protected industrial action under the Act.

In delivering its judgment, the court considered the evidence and submissions presented by both parties. The court found that the dismissals were not unlawful and were not related to union activities. The court further determined that the industrial action taken by the employees was not protected under the Act. The court concluded that the application for orders under section 318 of the Fair Work Act should be dismissed. The court found that there was no basis for the relief sought by the applicant and that the dismissals and industrial action were not unlawful. The court made orders dismissing the application and awarding costs to the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established